The First Amendment Right to Record and Seeing as “Speech Creation”
摘要
If we ask what gives us a right against government interference in our natural vision—that is, our ability to turn our heads and look around us—the best answer is likely not the First Amendment. What protects us against government interference here is personal freedom and bodily autonomy. However, it is not a surprise that—when we move from natural seeing to seeing with technology—First Amendment freedom of speech has become the focus of American courts. This is because, as the Court held in a 1965 case, Zemel v. Rusk, we may have a right to see what is in front of us, but we don’t have a right to ourselves everywhere we wish to gather information. To do that, we have to act as the audience for a speaker who is already there or has a right to be there. The right to record presents a partial answer to that problem—but an incomplete one.